HKSAR v. CHUNG CHI KWAN

CACC 453/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 453 OF 1999

(ON APPEAL FROM DCCC 535 OF 1999)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 20 August 1999, the Applicant was convicted, following a trial before Judge Fung in the District Court, on two charges of possession dangerous drugs for the purpose of unlawful trafficking, contrary to section 7(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134. Both offences were committed on 2 January 1990. The section of the Ordinance under which these charges were brought was repealed in 1992. The charges related to mixtures of 1.13 grammes and 32.39 grammes containing 0.92 gramme and 26.33 grammes respectively of salts of esters of morphine. The judge imposed concurrent sentences of two years and six years' imprisonment respectively. The Applicant now seeks leave to appeal against his sentences.

2. The facts were very straightforward. The Applicant was stopped in possession of the smaller quantity of dangerous drugs. He admitted that he was delivering this quantity to someone. At his home address, a further 32 packets were found. It was an admitted fact that these drugs were commonly known as "No. 4 grade heroin" which, if converted, would make approximately 800 grammes of No. 3 heroin worth about $23,000.

3. The judge in his Reasons for Sentence said:

"The two charges occurred on 2 January 1990 after the judgment in R v Chan Chi-ming [1979] HKLR 491 (dated 11 September 1979) and R v Cheng Yeung [1989] 2 HKLR 258 (dated 14 April 1989). In Cheng Yeung the Court of Appeal held that the trial judge should notionally convert No. 4 heroin to No. 3 heroin and base the sentence on the result of the conversion. In Chan Chi-ming the tariff for possession for the purpose of unlawful trafficking of very small quantities (up to 30 grammes of No. 3 heroin) should range from 2 to 3 years' imprisonment, and for substantial quantities (between 150 and 1,000 grammes of a mixture of No. 3 heroin) should range from 5 to 8 years' imprisonment."

4. The Applicant had originally been granted bail but he absconded and went into hiding for almost 9 1/2 years until he surrendered himself to police in May 1999, which accounts for the very long delay before he was sentenced in respect of these charges.

5. In his written grounds of appeal, which he has emphasised again today, he has put forward a number of humanitarian reasons for asking for a reduction of sentence. Whilst the court can sympathise with the Applicant's present family situation, considerations of this kind will rarely be a cause to reduce sentence in cases of this gravity.

6. In his written grounds, the Applicant also questioned whether the prosecution had sufficiently established the evidence to suggest that a conversion could be made by the judge in the terms set out in the Reasons for Sentence. He submitted that it was inappropriate to calculate his sentence on a hypothetical basis and in that context suggested that the Bill of Rights negated, in spirit at least, a hypothetical basis from being taken.

7. It seems to this court that the judge faithfully followed what had been set down in Cheng Yeung's case as the proper approach to sentence in cases such as the present one. Furthermore, the approach was applicable in this case bearing in mind the date of the Applicant's arrest. At that time, the court used to be concerned with the weight of the mixture but, as the narcotic content frequently varied, it was in due course decided by the Court of Appeal that it was unfair to judge people by the weight of the mixture and that a fairer basis was to decide the case on the weight of the narcotic content. So it came about that the court gave the judgment on 29 May 1990 in R v Lau Tak-ming & Others, (1990) 2 HKLR 370. It suffices to read the first part of the headnote where the court reconsidered the general tariffs applicable on conviction for the offence of possession of dangerous drugs for the purpose of unlawful trafficking and held, insofar as it is relevant to these proceedings:

"(a) Chan Chi-ming was decided in September 1979 when the purity of No. 3 heroin, the only type then used by addicts, was 23.9% on average. It was assumed at the time of Chan Chi-ming that the narcotic element in a mixture would be more or less constant and that purity was not in issue. It was on this basis that the court held that the mixture should be looked at rather than the narcotic content. Since 1982 the purity had steadily decreased and, at the time of this appeal, was about 4% or less. If the guidelines in Chan Chi-ming were to be applied to the present day purity rate of No. 3 mixture injustice might well occur. Those guidelines should therefore be replaced.

(b) In Cheng Yeung, the Court of Appeal had laid down new guidelines as to sentences for offences connected with No. 4 heroin, based upon the notional conversion of No. 4 heroin to No. 3 heroin. At the time of that case there was little or no consumption, or market for, No. 4 heroin in Hong Kong. Subsequently, however, seizures of No. 4 heroin had increased appreciably and by January 1990 were greater than the seizures of No. 3. The concept of notional conversion had proved to be too variable, since the narcotic purity changed from month to month, from mixture to mixture and from locality to locality. That concept should be replaced by guidelines based upon the quantity of the narcotic."

8. It is right to say that in the guidelines that were laid down under Lau Tak-ming, the Applicant could have expected to have received exactly the same or slightly more, by way of sentence, as he has in fact received under the procedure the judge adopted. The Hong Kong Bill of Rights Ordinance, Cap. 383, to which the Applicant referred, has no bearing upon any aspect of this appeal. The judge fairly approached sentence and in our judgment the sentence was entirely appropriate.

9. The application is dismissed.